Gujarat High Court
S. T. Karmachari Union Through Shri G S ... vs Divisional Controller, Gujarat State ... on 18 January, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 54 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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S. T. KARMACHARI UNION THROUGH SHRI G S MAKRANI (WORKMAN)
Versus
DIVISIONAL CONTROLLER, GUJARAT STATE ROAD TRANSPORT
CORPORATION, VADODARA DIVISION
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Appearance:
MR PARESH J BRAHMBHATT(9788) for the Petitioner(s) No. 1
MR HAMESH C NAIDU(5335) for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 18/01/2024
ORAL JUDGMENT
1. This petition is filed challenging the award dated
20.02.2018 of the Industrial Tribunal, Vadodara in Reference
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(IT) No.102 of 2009, wherein the reference filed by the
petitioner-workman challenging his punishment was rejected.
2. Facts, in brief, referred in the petition are as under:
2.1 The petitioner-workman was in service with the
respondent- Gujarat State Road Transport Corporation,
Vadodara Division (hereinafter referred to as "GSRTC") since
1987. It is case of the petitioner that while he was on duty on
13.07.2001 on the bus route of Kirtisthambh to Banboch, there
were more than 79 passengers boarded in the bus and the
petitioner had issued tickets to all the passengers, travelling in
the bus. However, during surprise checking, two passengers
were found without tickets and therefore, the petitioner was
charge-sheeted for the misconduct for misappropriation of fare.
It was case of the petitioner that false report was prepared by
the Checking Inspector that though money was collected for
fare from those two passengers, tickets were not issued. It was
baseless and incorrect allegation for which, the petitioner was
put to charge-sheet. The petitioner appeared in the inquiry
proceedings and upon completion of inquiry, the Inquiry
Officer held the charges as proved. Thereafter, the punishment
order dated 29.09.2001 was passed wherein the petitioner was
inflicted with stoppage of five increments with permanent
effect.
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2.2 Aggrieved by imposition of penalty dated 29.09.2001, the
workman raised dispute before Industrial Tribunal, Vadodara
registered as Reference (IT) No. 102 of 2009. Upon
adjudication of the reference, the same was partly allowed by
an order dated 22.09.2015. The Industrial Tribunal, Vadodara
vide order dated 22.09.2015 reduced the quantum of
punishment from stoppage of five increments to stoppage of
two increments.
2.3 Aggrieved by the order, particularly reduction of quantum
of punishment, respondent- GSRTC preferred writ petition
before this Court. In Special Civil Application No.12117 of
2016, this court vide order dated 18.08.2017 directed the
Industrial Tribunal, Vadodara to consider contention of the
petitioner-corporation, regarding delay to initiate the
proceedings by the workman and record its judgement in that
regard, in accordance with law.
2.4 Pursuant to that, Reference (IT) No.102 of 2009 was
heard by the Industrial Tribunal, Vadodara and the Tribunal by
order dated 20.02.2018 rejected the reference of the petitioner-
workman. Aggrieved by which, the present petition is filed.
3. Heard Mr.Paresh Brahmbhatt, learned advocate for the
petitioner and Mr.Hamesh Naidu, learned advocate for the
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respondent.
4. Mr.Paresh Brahmbhatt, learned advocate for the petitioner
made following submissions:
4.1 The petitioner-workman had raised a dispute challenging
punishment of stoppage of five increments with permanent
effect. In the first round of litigation, the said reference was
partly allowed and the Industrial Tribunal by order dated
22.09.2015 reduced the punishment from stoppage of five
increments to stoppage of two increments with permanent
future effect. The respondent-corporation preferred a petition
before this Court challenging the award dated 22.09.2015,
wherein this Court remanded the matter to adjudicate the issue
of delay. When the matter was remanded to adjudicate issue of
delay, the Tribunal's award confirming the punishment
imposed by order dated 22.09.2015 is erroneous. In other
words, the Tribunal ought not to have decided the quantum of
punishment reduced in the earlier round of litigation.
4.2 Further, the order of Tribunal dated 22.09.2015, reducing
the punishment was upheld by this Court on merits, except the
ground of delay. Therefore, the order dated 20.02.2018 of the
Tribunal confirming the penalty of stoppage of five increments
is without jurisdiction and deserves to be quashed and set
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aside.
4.3 When denovo hearing was not permitted by this Court in
the order dated 18.08.2017 of Special Civil Application
No.12117 of 2016, the award of the Tribunal dated 20.02.2018
deciding the issues on merits and on delay is erroneous.
4.4 On the merits of punishment, learned advocate for the
petitioner submitted that Industrial Tribunal erred in not
considering appropriate facts and therefore, the order is
perverse and deserves interference of this Court.
4.5 On merits, Learned Advocate submitted that the distance
was very short. It only takes 15 minutes to reach to the next
destination and for this short distance, 79 passengers were
given tickets. Tickets were given to all passengers and two
passengers have stated that though they have paid, were not
given the tickets cannot be believed, particularly when those
two passengers have not been examined. In the first round of
litigation, after considering other aspects i.e., short distance,
bus was over loaded by the passengers and non-examination of
the passengers, the Tribunal had appropriately reduced the
quantum of punishment. He therefore submitted to confirm the
order dated 22.09.2015, wherein penalty was reduced.
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4.6 Further, the award dated 20.02.2018 in relation to merits
is non-reasoned order and therefore, the same deserves to be
quashed and set aside. Moreover, considering the charges
levelled against the petitioner-workman, the punishment
awarded is too harsh and deserves to be interfered with.
4.7 In support of his submissions, he relied upon following
decisions.
(i) Mavji C. Lakum v. Central Bank of India reported in
(2008)12 SCC 726.
(ii) U.P. State Road Transport Corporation and others v.
Mahesh Kumar Mishra and others reported in AIR
2000 SC 1151.
(iii) Andhra Pradesh State Road Transport Corporation v.
G. Murali reported in (2018)12 SCC 41.
(iv) M/s.North Eastern Chemicals Industries (P.) Ltd. &
Anr. v. M/s.Ashok Paper Mill (Assam) Ltd. & Anr.
in Civil Appeal No.2669 of 2013.
5. On the other hand, Mr.Hamesh Naidu, learned advocate
for the respondent-corporation made the following submissions:
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5.1 Though the reference was filed after a delay of more
than 8 years, the Industrial Tribunal, Vadodara in the first
round of litigation, in the award dated 22.09.2015, erred in
not taking into consideration the said aspect. Since the award
was erroneous, GSRTC preferred Special Civil Application
No.12117 of 2016 before this Court and this Court vide order
dated 18.08.2017 directed the Tribunal to consider the
contention raised by the Corporation with regard to delay.
Once directions were issued to consider the contention of the
Corporation, award dated 22.09.2015 has merged with the
award dated 20.02.2018 and therefore, now it is not open for
the petitioner to contend that in the earlier round of litigation,
punishment was appropriately reduced.
5.2 Most importantly, for the punishment inflicted in the year
29.09.2001, reference was filed in the year 2009 i.e. after a
delay of 8 years, the same being an afterthought, the Tribunal
has rightly rejected the reference on the ground of delay.
Referring to the findings of the Tribunal, he submitted that
reference was rightly rejected on the ground of delay and
therefore even otherwise also, merits are not required to be
considered.
5.3 On merits, he submitted that in the cross-examination,
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the petitioner had accepted in the inquiry proceedings that
tickets were not issued on account of mistake and overload of
work and he admitted his misconduct. Now, it is not open for
the petitioner to say that inquiry was not conducted properly
and order of disciplinary authority is not correct.
5.4 Referring to his past misconducts, which the corporation
has annexed with its reply at Annexure R-3 (Page 112),
Learned Advocate submitted that there are not less than 26
earlier instances of same nature, where the petitioner had not
issued tickets after collecting money. Considering the delay and
misconduct which was accepted by the petitioner-workman, no
interference is required and the petition may be dismissed.
5.5 In support of his submissions, he relied upon following
decisions:
(i) Prabhakar v. Joint Director Sericulture Departement
and others reported in 2015(15) SCC 1;
(ii) Uttar Pradesh State Road Transport Corporation v.
Nanhe Lal Kushwaha reported in 2009(8) SCC 772
(iii) Uttar Pradesh State Road Transport Corporation v.
Suresh Chand Sharma reported in 2010(6) SCC 555
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(iv) Regional Manager, Rajastan State Road Transport
Corporation v. Ghanshyam Sharma reported in
2002(10) SCC 330.
6. Considered the submissions and decisions relied upon. It
is noticed that, for the punishment imposed vide order dated
29.01.2001 of stoppage of five increment with permanent
effect, the dispute was raised before the Industrial Tribunal,
Vadodara in the year 2009 i.e. after a period of 8 years. The
Tribunal, in the impugned order dated 20.02.2018 after taking
into consideration, the delay occasioned in raising the dispute,
as also, considering the cross-examination at Exh-28, rejected
the reference on the ground of Delay. In the Cross
examination, the workman had stated that he was aware about
the legal proceedings to be initiated against the punishment,
despite that, he had not done so. The Tribunal had also
observed that sufficient justification was not provided for
delay, and therefore, the reference deserved to be rejected only
on the ground of delay. Therefore, this Court does not find
any error in the award rejecting the reference on the ground
of delay.
7. On the aspect of delay, Hon'ble Supreme Court in the
case of Prabhakar (supra), has held as under:
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"39. Thus, in those cases where period of limitation
is prescribed within which the action is to be
brought before the Court, if the action is not
brought within that prescribed period the aggrieved
party looses remedy and cannot enforce his legal
right after the period of limitation is over. Likewise,
in other cases even where no limitation is
prescribed, but for a long period the aggrieved
party does not approach the machinery provided
under the law for redressal of his grievance, it can
be presumed that relief can be denied on the
ground of unexplained delay and laches and/or on
the presumption that such person has waived his
right or acquiesced into the act of other. As
mentioned above, these principles as part of equity
are based on principles relatable to sound public
policy that if a person does not exercise his right
for a long time then such a right is non-existent."
8. Once the dispute raised by the workman in Reference (IT)
NO. 102 of 2009, was rejected vide award dated 22.02.2018 on
the ground of delay, the penalty imposed vide order dated
29.09.2001 of stoppage of five increments would remain and
merits of the penalty order is not required to be gone into.
However, since submissions were made by learned advocate for
the petitioner on the merits of the penalty order, the same has
been considered hereinbelow.
9. On the aspect of merit of punishment, reliance has been
placed by learned advocate for the petitioner on the decision
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of Mavji C. Lakum (supra). In the said decision, the Hon'ble
Supreme Court has held that even if the inquiry is found to be
fair and proper, the Industrial Tribunal can go into the
quantum of punishment if the same is found to be highly
disproportionate. In the present case, the authority has
imposed penalty of stoppage of five increment with permanent
effect after taking into consideration the charges levelled
against the delinquent, his admission of guilt and past conduct
and therefore, in the opinion of this court, judgement would
not be applicable to the facts of this case.
10. The decision relied upon by the petitioner in the case of
U.P. State Road Transport Corporation and others v. Mahesh
Kumar Mishra and others (supra), would not be applicable to
the facts of the present case because in that case, the charges
were collected from the passengers higher than the amount of
tickets. It is the case where certain amount was to be returned
to the passengers, which conductor failed in doing and the
same is not applicable to the facts of the present case.
11. The decision relied upon by the petitioner in the case of
Andhra Pradesh State Road Transport Corporation v. G. Murali
(supra) would not be applicable to the facts of the present case
since in that case, the punishment was termination and
termination was imposed without cross-examining the
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passenger.
12. The decision relied upon by the petitioner in the case of
M/s. North Eastern Chemicals Industries (P.) Ltd. & Anr.
(supra), would not be applicable to the facts of the present
case because it was in relation to proceedings initiated, where
the limitation is prescribed under the limitation Act and the
delay was not condoned though sufficient cause being
explained. In the opinion of this court, the same would not be
applicable to the facts here.
13. Whereas, in the decision of the Hon'ble Supreme Court
relied upon by the respondent in the case of Ghanshyam
Sharma (supra), for charge of non-issuance of tickets to the
passengers, a penalty of removal from service was imposed
wherein it is held as under:
"2. The respondent in the present case was
employed as a conductor by the appellant. On more
than one occasion, he was punished having been
charge-sheeted on the ground of not issuing the
tickets to the passengers. In the instant case, it was
found that he was carrying 23 passengers without
ticket and an inquiry was conducted and he was
removed from service.
4. This Court in Karnataka State Road Transport
Corporation V/s. B.S.Hullikatti, has held that in
such cases where the bus conductors carry
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passengers without ticket or issue tickets at a less
rate than the proper rate, the said acts would inter
alia amount to either being a case of dishonesty or
of gross negligence and such conductors were not fit
to be retained in service because such inaction or
action on the part of the conductors results in
financial loss to the road transport cooperation. This
Court was firmly of the opinion that in cases like
the present, orders of dismissal should not be set
aside."
14. Moreover, on the aspect of judicial review in relation to
inquiry proceedings, doctrine of proportionality for the
punishment imposed by the authority when the charges stand
proved and the scope of judicial review on the quantum of
punishment, the Hon'ble Supreme Court in the case of
Chairman-cum-Managing Director, Coal India Limited and
Another V/s. Mukul Kumar Choudhuri and Ors reported in
(2009) 15 SCC 620 has held as under:
"13. It has been time and again said that it
is not open to the High Court to examine
the findings recorded by the Inquiry Officer
as a Court of Appeal and reach its own
conclusions and that power of judicial review
is not directed against the decision but is
confined to the decision-making process. In a
case such as the present one where the
delinquent admitted the charges, no scope is
left to differ with the conclusions arrived at
by the Inquiry Officer about the proof of
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charges. In the absence of any procedural
illegality or irregularity in conduct of the
departmental enquiry, it has to be held that
the charges against the delinquent stood
proved and warranted no interference.
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19. The doctrine of proportionality is, thus,
well recognized concept of judicial review in
our jurisprudence. What is otherwise within
the discretionary domain and sole power of
the decision maker to quantify punishment
once the charge of misconduct stands
proved, such discretionary power is exposed
to judicial intervention if exercised in a
manner which is out of proportion to the
fault. Award of punishment which is grossly
in access to the allegations cannot claim
immunity and remains open for interference
under limited scope of judicial review.
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20. One of the tests to be applied while
dealing with the question of quantum of
punishment would be any reasonable
employer have imposed such punishment in
like circumstances? Obviously, a reasonable
employer is expected to take into
consideration measure, magnitude and degree
of misconduct and all other relevant
circumstances and exclude irrelevant matters
before imposing punishment."
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15. In view of the above, in the opinion of this Court, the
petition fails on both the grounds i.e. a reference being raised
after a period of more than 8 years as also on merits, no
interference is required with regard to punishment imposed on
the workman. The submission of learned advocate for the
petitioner that aspect of only delay is required to be
considered and Tribunal ought not to have entered into the
merits by confirming the penalty order, in the opinion of this
court is of no consequence. Once the delay is considered, the
order of penalty 29.09.2001 would revive.
16. In view of the above, order of the Labour Court requires
no interference and therefore, this petition is dismissed. Notice
is discharged. No order as to cost.
(MAUNA M. BHATT,J)
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